Will FCC Allow Google to become the Fox that Guards its AllVid Henhouse?

A fox should not be allowed to guard a henhouse, unless the farmer wants the fox to eat all the hens.

Neither should the world’s fiercestcorporateopponent of copyright, Google, be allowed to be the FCC’s technological guard of $200b worth of annual video programming revenues, in the FCC’s AllVid Set-Top Box rulemaking, unless the FCC wants Google-YouTube and others to be able to pirate the nation’s video-programming property without paying for it.

Background

For those new to this old fable playing out at the FCC here is some brief necessary background.

In January the FCC Chairman announced a cable set-top box competition proposal requiring pay-TV providers give set-top box competitors de facto full open access to their proprietary video programming “information flows” including the video programming, for free.

It was obvious to all that Google was the genesis and the impetus for the proposal because as the proposal was being shared with the other commissioners for the first time, Google was simultaneously inviting Hill staffers to their Google Capitol Hill headquarters for an exclusive AllVid demo of their new Google-Box solution just two days later. How could Google have an accurate live demo ready to go when no one else knew the proposal existed -- unless they were intimately orchestrating the proposal behind the scenes for a long time?

After huge and unanimous strong opposition from pay-TV and programming interests that the rules would de facto abrogate copyright, contractual and licensing rights necessary to fully protect the $200b worth of video programming, the Chairman asked for opponents to propose an alternative approach.

In response, the Pay TV coalition proposed an app-based solution and video programmers insisted that any FCC rulemaking fully protect all their copyright, contractual and licensing rights and controls.

After the Chairman signaled an interest in working with the alternative app-based solution that respects the sanctity of content and contractual rights, Google and CCIA effectively rejected the app-based solution and double downed in their support for Google’s original Google technology proposal.

Why is it a Fox Guarding the Henhouse Problem?

Why are the latest proposedthree “guard-enabling” technologies that Google proposes to the FCC -- internet protocols, browsers and digital certificates -- like having the fox guard the proverbial henhouse?

Google, more than any entity in the world, dominates or uniquely can heavily influence how Internet protocols, browsers, and digital certificates operate or don’t operate together because Google dominates so much of the Internet’s traffic and ecosystem.

Concerning protocols, browsers, and certificates, and how they work together, everyone in the Internet multistakeholder technical community appreciates that Google is by far the single most influential force in determining how Internet protocols, browsers, and certificates actually work or don’t work in the real world.

Few outside of the Internet technical realm appreciate that the core HTTP Internet network protocol standard, which is the foundation of data communication on World Wide Web, was updated in 2015 for the first time since 1997. It is named “HTTP/2.”

Even fewer know that Google’s pioneering SPDY Internet network protocol was both the impetus for, and the basis of, the new HTTP/2 standard, which is the World Wide Web’s foundational computer code. Its core technical approach has largely become the new Web standard used by all the major browsers.

While HTTP/2 itself does not require encryption, Google Chrome has “stated they will only support HTTP/2 over TLS, which makes encryption de facto mandatory.” (TLS is Transport Layer Security, i.e. encrypted transmissions.)

See the pattern here. The world’s most dominant Internet entity technically, economically and politically proposes a redesign of the World Wide Web protocol. Its technical approach is very quickly adopted by the IETF and becomes the world’s new Web network standard.

Then Google, which controls Android, the world’s dominant mobile operating system and Chrome, the world’s leading browser, tells the rest of the world that they will only support adoption of the new improved modern Web network protocol HTTP/2 if it is tied to adopting Google encryption via TLS.

Encryption is a video pirates dream because they can pirate video programming with impunity given Google’s market leading encryption cloaks much piracy from law enforcement.

Second, consider that Google was busted by the FTC for hacking into a competitor’s browser.

A key part of Google-CCIA’s technology solution to guard the copyrighted programming, is that “web browsers use a “lock icon” to signal to users that they are viewing a “secure” website…”

The big trust problem here is only Google has been caught by Federal law enforcement authorities hacking into a competitor’s browser to secretly change users’ default lock settings to allow Google to spoof the system and deliver ads to users who had set browser settings saying they did not want the ads.

The FTC fined Google a record $22m for secretly hacking into the Apple’s Safari browser and misrepresenting to the public that they did not do such things.

Given Google’s recent record of egregiously flouting certification-like processes in browsers, copyright interests, have good reason and the evidence to not trust that Google’s proposed “simple and quick” technical process has the same security, fidelity and IP protection sanctity that an app-based solution can have that fully honors contracts and content rights.

Third, consider that Google is currently being accused of lying in Federal Court about its claims of “fair use” of copyrighted material.During the current Oracle vs. Google Java copyright infringement retrial, Oracle has charged that Google is lying in its claim that its use of Java on desktops is non-commercial “fair use” when Google during the trial launched a commercial desktop use of that same Java copyrighted material.

Again copyrighted programming and Pay-TV interests have strong contemporaneous evidence happening in Federal Court to distrust the truthfulness of fox-Google’s representations to the FCC about how their technological set-top box solution “could be created to implement the “Unlock the Box” proposal.”

Fourth, consider that Google-CCIAassure the FCC that their technical proposal is workable because “violations of such policies [certificates] could be addressed by either the FTC or by relevant state authorities [State AGs].”

It is the height of hypocrisy, irony and Goobris for Google to say that State AGs could enforce Google’s copyright protection solution, when Google won a Federal Court injunction in 2014 that effectively prevented all State Attorneys General from investigating Google for any potential violation of state law, including copyright infringement, for sixteen months from fall 2014 to Spring of 2016.

Yet again copyrighted programming and Pay-TV interests have strong recent Federal court evidence to distrust the truthfulness of fox-Google’s representations that their technical “solution” is enforceable as they claim.

Conclusion

Google-YouTube is: the world’s fiercest corporate opponent of copyright; the biggest global lobbying force to neuter copyrights; and the only company fighting in court to enjoy the same “fair use” rights of copyrighted video programming that individuals do.

Google is a ferocious determined fox with a proven appetite for pirated content.

There is a lot of evidence why Google is not a credible technology solution provider in this particular instance.

Google dominates the “guarding” technologies it proposes the FCC use.

Google paid a record FTC fine for illegally abusing these technologies for corporate gain in 2012.

Google apparently lied recently in Federal Court about information material to its claims of fair use.

And Google recently had been in an all out war with State AGs about whether or not State law applies to Google at all.

Simply if the FCC adopts any of Google’s self-serving technological solutions, they would be allowing the proverbial fox to guard the henhouse.

Forewarned is forearmed.

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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.

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Precursor AllVid Series

Part 1: FCC’s AllVid Proposal Is Really the Great Google Ad Grab [1-29-16]